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No. 4 Legislative Council Western Australia

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No. 4 Legislative Council Western Australia Submission No 4 INQUIRY INTO PROCEDURAL FAIRNESS FOR INQUIRY PARTICIPANTS Organisation: Legislative Council Western Australia Name: Hon Kate Doust MLC Date received: 3 November 2017 Appendix 1 — Witnesses Entitlements Access to relevant documents 1.1 A witness has access to any relevant documents in a committee’s possession which are directly relevant to the witness’s evidence to the committee. This entitlement is subject to any order of the committee that a document be kept confidential (e.g. if the document is given a private status). A witness’s general entitlement to access does not prevail over specific orders of the committee in relation to private evidence. The committee is not required to inform a witness of the existence of private evidence. 1.2 If the relevant documents in question are private and if a witness is aware of the document they may request the committee to review any refusal to provide a private document or to make an order to facilitate access. This provision presupposes that the documents in question are not readily available, and that they have not been previously published. In considering whether to grant access to a relevant document, a committee will need to consider a number of matters, which may include but are not limited to the following: • whether provision of a document would breach any undertaking given by the committee in relation to maintaining its confidentiality; • whether provision of a document would breach any applicable law. • the effects of providing a document on a person’s privacy, security, commercial interests, or legal interests of any person; • whether the withholding of a document would unfairly prejudice a person’s capacity to rebut allegations made against them; • whether there are other methods of providing access. These may include providing a document in a summarised or redacted form that provides the witnesses with the capacity to rebut allegations, while addressing committee concerns; or making the provision of a document subject to requirements that limit its further publication; and • whether provision of a document would prejudice the committee’s inquiry. 1.3 Committees may receive evidence in camera . Evidence taken in camera can only be disclosed by order of the Council. Normal practice in matters of this nature is for the Committee to provide a report to the house to assist Members and inform debate. In this instance it is anticipated a report would encompass matters listed in 1.2 above. 1.4 The committee publishing submissions and material correspondence on its website is a common way to provide access to relevant documents to witnesses. Benefit of counsel 1.5 The practice of the House is that this entitlement refers only to ‘legal counsel’. A witness is not entitled to the benefit of a support person or counsel who is not ‘legal counsel’ under the standing orders. However, a committee has a discretion to allow a witness the benefit of counsel that is not ‘legal counsel’. 1.6 The role of counsel is one of assistance to the witness, and does not mean that counsel ‘represents’ the witness at the inquiry as an advocate. This is a marked difference from the traditional role of counsel in litigation. Counsel may not answer questions for, or give evidence on behalf of, the witness. 1.7 In some circumstances, for instance departmental legal officers, the legal counsel may be able to give evidence about a certain matter on their own behalf for example, the practical effect of a legislative provision. In such cases they are to be treated as a witness in their own right. 1.8 Ministers providing evidence before a committee are often assisted by ministerial advisers in the same manner as they are when the House is considering a bill during Committee of the Whole House. Such advisers are present to assist the minister but do not speak directly to the committee. If they are to speak directly to the committee then they must be treated as appearing as witnesses on their own behalf. Apply to be heard in private or in camera 1.9 Although witnesses are free to apply for evidence to be heard in private or in camera, it is explained to each witness (by the Chairman at the commencement of the hearing) that such private/in camera evidence may still subsequently become public upon a resolution of either the committee or the Council (if the evidence is ‘private’) or the Council only (if the evidenced is ‘in camera’). Right of objection / Refusing to answer an irrelevant question 1.10 It is rare for the legal objection provided by s7 of the Parliamentary Privilege Act 1891 to be raised. Under this provision a witness may object to providing an answer or producing a document if the evidence “is of a private nature and does not affect the subject of inquiry”. This is the only legal ground for objecting to answer a question or produce a document. 1.11 It is more common for a witness to object to providing evidence on the basis that it is not relevant to the committee’s inquiry. A committee may, and often does, consider the merits of such an objection. It is for the committee to interpret its terms of reference and determine what is within the scope of the inquiry or Bill being examined. If an objection is referred to the House, it is for the House to ultimately decide whether the objection is valid. 1.12 Objections to requests for the production of documents based on legal professional privilege and commercial confidentiality, like those based on executive/Crown privilege and public interest immunity should be accompanied by reasons justifying the objections. Rebut allegations of criminal, improper or unethical conduct / An opportunity to respond to adverse findings 1.13 The adverse allegations in question must arise during the course of a witness’ evidence before the committee, and also need to be relied upon by the committee in its eventual findings. This second factor (reliance) is not referred to in the standing order but as a matter of practice it should circumscribe the application of the standing order. Many matters are raised in evidence that may be unfavourable to a person but if they are not relevant to the inquiry and are not relied upon by the committee then they should lie where they fall. 1.14 The standing order is confined to dealing with “persons examined before a committee”. However, if a committee proposes to make an adverse allegation against any person in the findings of a report (whether or not they have been a witness) then a letter will be sent to that person informing them of such and giving them the opportunity to rebut the proposed adverse finding. 1.15 In practice findings should not be made against a person or entity unless they have had an opportunity to provide evidence to the committee and put their side of the story. This opportunity to rebut the nature of the allegation may be provided at a hearing and reflects the common law rule in Browne v Dunn (1893) 6 R. 67. However, even if the committee has put an adverse allegation or potential adverse finding to a witness at a hearing, the committee should also, after the draft report has been considered and it has agreed to its preliminary findings, write to the person advising of any adverse finding/s and provide them with an opportunity to respond. The Committee should then consider the person’s response, and reflect this consideration in the final adopted report, if appropriate. If balancing evidence is not available (e.g. passage of time, death) then the committee should weigh the evidence that it has received accordingly. 1.16 The standing order does not define the meaning of an allegation or “adverse evidence”. However general rules of interpretation can be applied. The standing order does not apply to evidence merely on the basis that it is contrary to other evidence. In many cases, the views offered will differ, may contradict each other and may criticise the rationality, accuracy or acceptability of alternative opinions – this is – evidence adverse to another’s case not intended to be captured by the standing order. Opportunity to correct errors of transcription 1.17 Only typographical or transcription errors may be corrected on the transcript of evidence. This is noted on the Instructions for Witnesses document sent to witnesses with the uncorrected transcript. 1.18 This instruction document also sets out that any corrections by the witness of factual information should be made in a separate cover letter to the committee. If accepted by the committee, a letter of correction is placed on committee’s website with the finalised transcript of evidence. 1.19 What is a ‘reasonable opportunity’ is to be considered in the light of every case. The standard request to a witness accompanying an uncorrected transcript email requests a transcript’s return by 5pm in 5 business days. Provide supplementary or new evidence 1.20 This involves access to relevant documents or adverse findings or allegations so far as they are relevant to the witness’ case. Appendix 2 — Witness Information Sheet THIRTY-NINTH PARLIAMENT REPORT 39 STANDING COMMITTEE ON PROCEDURE AND PRIVILEGES REFERENCE FROM THE HOUSE ON 25 FEBRUARY 2015; STANDING ORDER 97: STRANGERS IN THE COUNCIL; AND STANDING ORDER 181: WITNESSES’ ENTITLEMENTS Presented by Hon Barry House MLC (Chair) June 2016 STANDING COMMITTEE ON PROCEDURE AND PRIVILEGES Date first appointed: 24 May 2001 Terms of Reference: The following is an extract from Schedule 1 of the Legislative Council Standing Orders: “1. Procedure and Privileges Committee 1.1 A Procedure and Privileges Committee is established.
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